Transitional Justice in the Asia-Pacific (15 page)

The second element of broader context is the dramatic transformation of Aceh itself. Since the 2005 Helsinki peace agreement was signed, the level of post-conflict violence between the two sides has declined dramatically, with the consequence that Aceh is often promoted internationally as a role model of how to resolve protracted internal conflicts. Part of the reason for this success has been the climate of reconstruction and rebuilding that came in the wake of the peace deal and, even more importantly, after the devastating 26 December 2004 Indian Ocean tsunami. The recovery and reconstruction effort not only enhanced goodwill among former conflict actors, but also provided them with major economic benefits, cementing their commitment to peace.
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For present purposes, however, the most important part of the post-conflict climate has been the dramatic political transformation experienced in Aceh.
At the heart of the peace deal was a political compromise in which supporters of GAM agreed to give up their demand for independence in exchange for the chance to compete for local political power in a more autonomous Aceh that remains part of Indonesia. In December 2006, Aceh held direct local elections to choose heads of local government.
Irwandi Yusuf, a former GAM propagandist, and Muhammad Nazar, a
former pro-independence student leader, were elected as governor and deputy governor. Then and in subsequent elections, former GAM combatants were also elected to head ten of Aceh's twenty-three districts. This political transformation of GAM from a guerrilla movement into a central player in local official politics became even clearer during the 2009 legislative elections when
Partai Aceh (PA), the party established as the vehicle of former adherents of the movement, won just under 50 percent of the vote for the provincial parliament. PA also dominated the election results in many district parliaments.
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Subsequently, in 2012, the PA candidates Zaini Abdullah and Muzakkir Manaf (prominent leaders of the civilian and armed wings of GAM respectively) were elected as the governor and deputy governor of the province.

This move of the former GAM combatants to the centre of political power in Aceh has mixed results for the transitional justice agenda. On the one hand, the movement itself contains many former combatants who themselves might have good reasons to fear an open and honest accounting of past abuses against civilians, as it is widely understood (but poorly documented) that many GAM combatants perpetrated violent acts not only against their military adversaries but also against civilians. The movement has also prioritized various other issues (such as fleshing out details of the new special autonomy granted to Aceh as part of the Helsinki peace deal) above transitional justice issues.
On the other hand, the movement and its allies previously made campaigning against human rights abuses in Aceh a central plank of their international campaigning and might therefore be expected to retain at least some residual sympathy for justice approaches. Certainly, both Governor Irwandi Yusuf and his deputy Muhammad Nazar, at times (especially early on in their tenure) indicated their support for a Truth and Reconciliation Commission and various other elements of the transitional justice agenda, indicating the
continuing influence of the human rights ideas they espoused when they campaigned against Indonesia and in favour of independence.

Having reviewed the broad context, we are now in a position to examine various elements of transitional justice which have become significant in Aceh.

In the late 1990s and early 2000s, when Indonesia made the transition to democracy and political space opened up widely – but briefly – within Aceh, the prospect of trials for perpetrators of human rights abuses seemed to become very real. There was a series of official investigations of past abuses in Aceh and, following one especially egregious massacre of civilians, a trial of military personnel took place and resulted in sentences, albeit very light ones.
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Meanwhile, as a result of political lobbying in Jakarta, a 2000 law was passed that established special Human Rights Courts (Pengadilan HAM) throughout the country.

The Helsinki MoU picks up on this existing framework and includes a clause on the Human Rights Court that is minimalist in the extreme: ‘A Human Rights Court will be established for Aceh’. Even so, this clause is potentially highly contentious in the Indonesian context, largely because the TNI has already demonstrated its hostility to, and its ability to obstruct, human rights trials in other cases around the country, especially those associated with East Timor.

Sure enough, the first public controversy about the meaning of the MoU, only one day after it was signed, concerned the interpretation of the Human Rights court clause. GAM negotiator
Nur Djuli said that
the court would have retroactive authority and would be able to rule on past human rights abuses.
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National military and government leaders immediately countered, saying that this would not be the case, and that ‘scratching open’ the old sores left from the past would ‘endanger the peace’. As then TNI Commander-in-Chief, General
Endriartono Sutarto put it, ‘It shouldn't be at the very moment we are resolving the problem, that we are always oriented to the past, with the result that we'll be unable to create the peace we desire.’
¹⁴
Retired
General Kiki Syahnakri was even more blunt, reflecting an assessment of the MoU widely shared by serving officers: ‘GAM, who have opposed the republic, get a pension. TNI soldiers who fell in battle, or whose legs had to be amputated, what do they get? They get threatened with a Human Rights Court.’
¹⁵

Before long, it became clear that the Human Rights Court would be established as part of Indonesia's elaborate but so far largely dysfunctional national framework of human rights protection. Theoretically, national human rights mechanisms could have been used to punish human rights abusers in Aceh even prior to the Helsinki accord. Indonesia's 2000 Human Rights law provides that serious human rights crimes prior to 2000 can be tried by ‘Ad Hoc Human Rights courts’, which can be established for particular cases by the president in cooperation with the national parliament. Crimes taking place after the law was passed (that is, after 2000) can be tried in regular Human Rights Courts. One such court was established in Medan, North Sumatra, following a 2001 Presidential Decree and has jurisdiction over Aceh (thus fulfilling the MoU clause that a Human Rights Court be established ‘for’ Aceh), but to our knowledge it has not yet heard a single case. According to the 2000 law, the prosecution process begins with an investigation by Indonesia's
National Human Rights Commission (Komnas HAM). If this body finds evidence
of gross abuses, it hands its findings to the Attorney General's office for preparation of a case. In Aceh, there have been numerous Komnas HAM investigations of abuses over the years but to our knowledge the Commission has not yet handed any cases over to the Attorney General's office.

The Law for the Governing of Aceh (LoGA, the law designed to embody special autonomy and implement other aspects of the 2005 MoU), passed by the national parliament in July 2006, mandates the establishment of a Human Rights court in Aceh. It also says that such a court should be established within twelve months of the law being passed, though this had still not happened by late 2012, more than six years after the law was passed. However, the LoGA explicitly states that the court will have the authority to rule only on cases occurring
after
the passage of the law itself. This means that all the architecture outlined in the preceding paragraph remains the potential mechanism for prosecuting past human rights abuses.

Given this background, few political actors in Aceh seriously believe that prosecutions for past abuses will take place, or seriously work toward that end. Also, and as noted by one former senior official from
Aceh Monitoring Mission (AMM, the international body that oversaw implementation of the peace accord in 2005 to 2006), serious human rights investigations and prosecutions were simply not part of the agenda in AMM discussions with the Indonesian government during the implementation phase: ‘It will take a long time before the TNI will be prosecuted. It was and still is a complete taboo. It was simply not possible to discuss or raise it.’
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Local legal and human rights organisations such as the Legal Aid Institute (LBH) and the Commission for Disappearances and Victims of Violence
(KontraS) still campaign for such an outcome, and there are occasionally congresses or demonstrations by victims – sometimes very rowdy demonstrations – that call for prosecutions.
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Those
involved, however, often seem to be standing up for a matter of fundamental principle without evincing optimism about the prospects. Other actors believe that human rights investigations and prosecutions would be premature and could even endanger the peace process by triggering military resistance and attempts to undermine it.

Given the obvious difficulties in pursuing justice through the Human Rights Court pathway, many human rights advocates at the local level have instead invested energy in pursuing the Truth and Reconciliation Commission (TRC) option. An Aceh TRC is mandated by both the 2005 MoU and the 2006 Law for the Governing of Aceh (LoGA). A law (No. 27 of 2004) providing for the establishment of a national TRC had already been passed by Indonesia's national parliament in 2004, well before the Helsinki MoU was signed. The MoU (article 2.3) states that ‘A Commission for Truth and Reconciliation will be established for Aceh by the Indonesian Commission of Truth and Reconciliation’, while the LoGA (article 229.2) describes the Aceh TRC as an ‘inseparable part’ of the national TRC. A TRC is thus clearly an accepted part of the national political agenda in Indonesia and there is therefore little doubt that an Aceh TRC eventually will be established, even if some elements of the government's security establishment have apparently privately pressed for the abandonment of the idea.

However, the legal context for the establishment of an Aceh TRC was thrown into deep confusion in late 2006 when the Constitutional Court (
Mahkamah Konstitusi
) revoked Law 27 of 2004, before President
Susilo Bambang Yudhoyono had even appointed the members of the national TRC (a delay of more than two years, for which he was widely condemned by Indonesian human rights activists). The Court took this step partly because the Law provided for amnesty and hence legal immunity for perpetrators of gross human rights abuses (for instance, article 27 stated that compensation and rehabilitation of victims would occur only when
an amnesty had been granted). Although many human rights advocates welcomed the Court's defence of the principle of accountability, they deeply regretted that revocation of the law delayed even further the formation of a national TRC. It also threw the formation of an Aceh TRC into doubt because of the provisions of the MoU and LoGA, which stated that such a body would be part of, or established by, the national TRC.
Further complicating the picture, the LoGA also states that the Aceh TRC would be established ‘by this law’ and that it needed to be operating effectively within twelve months of the LoGA being passed, which occurred in July 2006.

There has thus been, since this time, an ongoing debate in Aceh about whether the provincial government should go ahead and establish a local TRC by way of
qanun
(provincial legislation), or should await action by the national government. On the one hand, advocates of a locally constituted TRC note the fading central government interest in such a process and the generally bleak situation of human rights enforcement at the national level, evidenced by paralysis on reforming the national TRC following the Constitutional Court decision. They thus argue that political conditions may be more supportive of a locally initiated process and believe that the leaders of the Aceh government might support, or be persuaded to support, such a process. And indeed, various local government officials, and local legislators, have at various times endorsed an Aceh TRC.

Others warn that a locally constituted body might be seriously compromised. Among them are local legal experts and advisers to the provincial government who have argued that the explicit wording in both the MoU and the LoGA on the question of an Aceh TRC being part of a national body would lead to great legal uncertainty if a local body were established independently. Another key issue concerns the powers of such a commission to subpoena witnesses and perpetrators, especially those from national bodies like the military and police. Presumably, a TRC established by the central government would, or at least could, depending on the political will to create such an outcome, have such
powers. It is much more doubtful, indeed very unlikely, that a commission established by the provincial government in Aceh would have either the legal authority or the political weight to achieve this goal. Advocates respond that the critical functions of a local commission, even if unable to call witnesses or perpetrators, would be to constitute official acknowledgment that human rights abuses actually happened, and to provide a forum for victims to finally talk about their experiences in a formal context.
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By as early as late 2007, it appeared that those who counselled caution and insisted that any local TRC would have to be constituted in conjunction with a national body were winning the day. Even many of the local human rights advocates favoured national-level backing for an Aceh TRC, as did Aceh's provincial government. The national
Department of Law and Human Rights announced, for its part, that a new draft bill on the TRC would be on the government's list of bills to be considered by the national legislature in 2008.
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For several years now, national policy makers have been drafting their own version of a TRC concept paper, one that allegedly promoted ‘healing’ rather than emphasizing a process that might lead to legal sanctions for perpetrators. Local human rights advocates feared that such a TRC might function as a means of conferring immunity on perpetrators (though the Constitutional Court has already determined that this would be unconstitutional). They formed a body called the Coalition for Truth Recovery (
Koalisi Pengungkapan Kebenaran
,
KPK) which involves human rights groups and other NGOs in Aceh and Jakarta and prepared a working paper calling for the rapid formation of a TRC.
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This proposal advocated disclosing ‘those facts that have been intentionally hidden’ which may be ‘critical for resolving past crimes, including the search for victims of forced disappearances and the graves of those who were killed.’
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In part, the role of the TRC would
be to provide a truth-telling mechanism that could accumulate data for human rights prosecutions at a later date.